Mereka & Co Advocates v New Cooperative Kenya Creameries Limited (Civil Appeal (Application) E034 of 2021) [2024] KECA 189 (KLR)
The bottom line
#The Court of Appeal refused to revive an advocate's delayed appeal, confirming that unexplained delays must be backed by solid evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the reference under Rule 55 of the Court of Appeal Rules challenging the single judge's refusal to extend time under Rule 4 is meritorious
- 2.Whether the single judge exercised her discretion judiciously or misapprehended the evidence and the law in declining to extend time
Key legal issues
#Standard for interference by the full Court with a single judge's discretionary decision on a reference under Rule 55
The full Court may interfere only where the single judge took into account an irrelevant matter, failed to consider a relevant matter, misapprehended the evidence or law, or was plainly wrong; it is not enough that the full Court would have decided differently.
The Court adopted its prior statement in John Koyi Waluke that a single judge exercises the unfettered Rule 4 discretion on behalf of the whole Court. Interference requires demonstration that the discretion was exercised injudiciously or that the decision was outrightly wrong. A mere difference of opinion on the outcome cannot justify disturbing the single judge's ruling. The applicant failed to establish any such error here.
Whether the delay in filing the record of appeal was satisfactorily explained
The delay of 24 months was largely unexplained: only 237 days were covered by the Certificate of Delay, and the medical and Covid-19 explanations left unexplained gaps unsupported by evidence.
The Park Eye Centre letter covered only July to October 2020, leaving an unexplained gap of about one year after the Certificate of Delay was issued. The Urology Centre letter was not attached, the assisting-counsel studies claim had no supporting evidence, and e-filing practice directions rendered the pandemic explanation ineffectual. Mere averments without annexures are akin to submissions from the bar.
Burden of proof on an applicant for extension of time
The applicant bore the burden of proving its explanation for the delay to the required standard and failed to discharge it.
The applicant relied on correspondence with the respondent but annexed none of it, and the alleged correspondence postdated the delay. In the absence of responding evidence, the onus remained on the applicant to prove its allegations to the required standard, which it failed to do.
Legal principles established
#- A single judge exercising discretion under Rule 4 acts on behalf of the whole Court, and the full bench may interfere only where the judge took into account an irrelevant matter, failed to take into account a relevant matter, misapprehended the evidence and law, or was plainly wrong
- The fact that a different judge would have reached a different conclusion is not of itself sufficient to warrant interference with a discretionary decision
- The parameters for extension of time under Rule 4 are the length of and reason for the delay, the chances of success of the appeal, and prejudice to the respondent
Court orders
#- 1.The reference under Rule 55 of the Court of Appeal Rules is disallowed
- 2.No orders as to costs, the respondent not having participated in the proceedings
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Misc. Application No. 499 of 2012
- Jurisdiction invoked
- Rule 55 of the Court of Appeal Rules (reference from a decision of a single judge, under the proviso to section 5 of the Appellate Jurisdiction Act)
Relief refused
#Extension of time to file a memorandum and record of appeal out of time
The greater part of the 24-month delay was unexplained and inordinate, causing prejudice to the respondent; the single judge's exercise of discretion disclosed no error warranting interference by the full Court
Costs
No orders as to costs, the respondent not having participated in the proceedings
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the end, it is our decision that the reference under Rule 55 of the Court of Appeal Rules lacks merit and the same is disallowed with no orders as to costs, the respondent not having participated in the proceedings.
the full bench of the Court would only be entitled to interfere with the exercise of discretion if it be shown that in the process of exercising the discretion, the single Judge has taken into account an irrelevant matter which he ought not to have taken into account, or that he failed to take into account a relevant matter which he ought to have taken into account or that he misapprehended some aspect of the evidence and the law
The irrefutable inference to be drawn is that the unexplained delay was inordinate. This in turn results in injustice and prejudice to the respondent if such delay is excused in the manner in which it has been presented.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mereka & Co Advocates v New Cooperative Kenya Creameries Limited (Civil Appeal (Application) E034 of 2021) [2024] KECA 189 (KLR)", Case Analysis (2024). Misc. Application No. 499 of 2012 (reference from the decision of A.K. Murgor, JA dated 21st October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/189/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.